Internet freedom — the state of play
Featuring an interview with Evan Greer (Director, Fight for the Future), and Utsav Gandhi (Researcher & Campaigner, Fight for the Future).
We enjoy what is known as Internet freedom if we can search, save, view, or read anything we set out in our minds to do.
A clue to what happens when we lose freedom of expression lies in looking to the last century. When Nelson Mandela said “freedom can never be taken for granted” and “each generation must safeguard it and extend it,” he referenced a darker past — of suffering under apartheid — and a people silenced in many ways, including by the media. Years after those events, the Internet brings hope. It’s a place to create and express yourself and it’s a space to raise your voice about injustice.
We could look further back to the 19th century. Perhaps thinking about Charles Dickens, the famous English novelist who described in ‘Hard Times’ the cruel school superintendent, Gradgrind, drilling into his students the only important thing to learn was “facts, facts, facts.” People were no use without facts, and if treated with “pictures of pretty things”, they would become fairly useless. If 19th century Dickens were alive today, he’d no doubt be thrilled with the invention of cat memes!
We like to feel we’ve learned all these lessons from the past and the dark days are over.
Well, not quite.
The Communications Decency Act (CDA) and Section 230
In the United States, your civil freedom to speak or express yourself on the Internet is enshrined within the CDA. The bit that gives you what most folks recognize as an open Internet is in Section 230 of the Act. This refers to Internet freedom and captures the wish to preserve the “vibrant and competitive free market that presently exists for the Internet … unfettered by Federal or State regulation.”
What is Section 230?
CDA 230 is a federal law that prevents websites, blogs, and forums from being responsible for their users’ speech. At present, the law states that “no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”
But this freedom is under threat.
Let’s dig a little deeper into what is happening and how the U.S. Congress is moving to infringe on our Internet freedom with new laws.
Free enterprise and free speech online
The CDA is an important law in tech because it promotes the continued development of the Internet. Section 230 accepts an “unpredictable liability for online services because they rely on human interaction” — so the default mode for online speech is “free speech” — or no liability for you if you run online businesses or personal websites.
In the U.S., some Democrats claim that it allows technology companies to host unfiltered hate speech with impunity, while some Republicans claim that it allows for ruthless censorship of online content without repercussions.
Former President Donald Trump pushed Section 230 into the spotlight, claiming websites needed stronger regulation during elections. He says he experienced a barrage of “fake news” posts about his campaign statements and promises, which cost the Republicans votes.
The main idea behind reform is to change Section 230 and put moderation firmly into the hands of anyone who owns a website. This will make site owners liable for third-party website content, including user-generated content.
Poking holes in Section 230
To get a perspective on the campaign to change 230, who’s who, and debunk fiction from facts (Gradgrind would be proud), we spoke with Evan Greer, Director, and Utsav Gandhi, Researcher & Campaigner, of Fight for the Future.
Fight for the Future opposes the repeal or gutting of Section 230, a position supported by their coalition of more than 70 racial justice, civil liberties, LGBTQ+, and human rights groups.
Do those who campaign to curb the freedom of Section 230 have a valid argument?
Greer told us, “Not really. And if you’ve got a small business or an online venture of some description, you should be concerned about any changes to Section 230. Many campaigners for change feel the Internet has become a fast and efficient means for the distribution of offensive, illegal, or abusive material — and their arguments are emotive and convincing, but largely based on misconceptions.”
And does this mean it’s a case of a few bad apples spoiling the barrel?
Greer says, “If we’re speaking of content moderation practices, at present, compatible laws do ensure all companies can moderate content. However, the Internet is a modern tool, and a speedy form of content delivery on-demand and the fact remains — not all websites are moderated the same as others.”
Many are determined to gut Section 230 or force moderation onto all platforms.
How can things be worse?
Without Section 230, could smaller platforms be sued out of existence?
Utsav Gandhi, a researcher and campaigner with Fight for the Future, explains why this is the case: “If given the power to enforce moderation, small platforms might have to hand control over what’s allowed to a responsible ‘parent’ company. When their websites receive abuse, scams, and spammy user content, if the moderators disagree, the content remains. As a result, their brand could suffer, driving their users away.”
Gandhi explains: “The most recent example of poking holes in Section 230 involved two bi-partisan bills passed into law by former President Donald Trump in 2017. Both bills — the House bill known as FOSTA, the Fight Online Sex Trafficking Act, and the Senate bill, SESTA, the Stop Enabling Sex Traffickers Act — enabled platforms to “crackdown” on (or be liable for) third party content if users posted ads for prostitution (including consensual sex work). But the law had other negative impacts.”
What went wrong with FOSTA/SESTA?
Gandhi continues: “We now know those laws didn’t do anything to reduce sex trafficking meaningfully. Instead, they led to widespread censorship of legitimate content and harmed the very community they were trying to help.”
The crackdown disproportionately affected sex workers and LGBTQ+ creators by shutting down spaces that made people safer, pushing them back onto the street and into darker corners of the Internet. You can find out more detail here about the impact of FOSTA/SESTA on these already marginalized groups.
Should Section 230 be modified?
Protectionism leads to censorship — and a fundamental tenet of a democracy is to avoid unnecessary censorship. In the United States, freedom of speech is a constitutional right. Yet, reforms to Section 230 seek to editorialize the Internet.
Gandhi says, “By placing the content decision-making firmly into the hands of content platform owners, your business could fall foul of big-tech algorithms, or worse, be required to participate in big data and surveillance as part of your agreement to moderation oversight.”
Gandhi explains, “It is no surprise that Facebook — including its CEO Mark Zuckerberg — has spent an inordinate amount of advertising money and lobbying efforts proclaiming that “Facebook supports updated Internet regulations for the first time in twenty-five years, including to Section 230.”
On the other side of things, Gandhi tells us “Wikipedia itself wrote a blog post defending Section 230 in its current form:
‘Any amendments to Section 230 must take into account their effects not just on large, well-funded tech companies, but on startups and nonprofit organizations as well.’ ”(Wikipedia).
Greer comments: “As is so often the case, years later, we feel the impact of ill-thought-out laws.” But there is some recent, positive news. On May 14, Joe Biden revoked Trump’s executive order censoring free speech, ending Trump’s wish to block platforms that run fact-check websites about Republican (and particularly Trumpian) statements.
The original claim that Republicans were adversely affected by decisions made by Twitter and others to block their content simply wasn’t valid. “In fact,” Greer states, “the most credible data often points to the opposite — that almost all of the top-performing posts on social media platforms are from conservative figures and news outlets.”
Modifying Section 230 might create an environment where there is more control over what is said on the Internet, and less space for diversity to flourish.
Do Big Tech companies have too much power over what we can see and hear?
“Yes. And that includes suppressing controversial viewpoints on both the left and the right,” but, Greer adds, “changing Section 230 will make this problem worse.”
And moderation is not a perfect science, as Twitter recently proved. After fact-correcting political posts in a thought experiment, Twitter discovered users simply made more extreme posts.
“What most people don’t appreciate is changes to 230 will only make things worse for people to express themselves online.” Gandhi says, “moreover, with the big tech platforms as the only ones left standing able to navigate regulation, the power to regulate may fall to a few private individuals who own big tech companies.”
That’s a potentially huge concentration of power in the hands of a few private Big-Tech owners.
Do the Democrats also want changes to Section 230?
“The biggest concern that the political left has with Section 230 is that it believes the law is responsible for the spread and amplification of hate speech and disinformation,” Greer says, “and it wants to add additional liability by changing up their moderation practices.”
“Unfortunately, gutting 230 won’t fix the existence of harmful content — and,” she adds, “it could make it harder for platforms to remove awful content (or just plain spammy) but not illegal content.”
The current state of play
At the moment, in the United States, website owners don’t incur liability if a user on their website posts something that offends someone else or has a criminal aspect.
Impact on business, solopreneurs, blog producers, activists, artists:
- As a website owner, you’re free to take down any site content you wish without having to run it past a regulator or set of rules. And you won’t be sued for your decisions.
- You don’t have to moderate (though it’s wise to keep an eye on third-party content).
- You can get on with business and making content. Not so much having to think about everything a user might comment on or review on your website.
Section 230 establishes a level playing field between all websites — no matter how big or small — in setting rules for moderation for themselves. You decide what’s suitable for your website and brand.
Impact on individuals:
- You can say mostly what you like, but understand many sites have content guidance and could take down your post.
- You can report hate speech or offensive/harmful content or address civil rights violations you don’t like — you can report to the relevant authorities — who can take stuff down and investigate crimes. And you can do both.
The potential state of play if Section 230 is changed
You might be confused about what the difference is between altering 230 and what goes on now.
If Section 230 changes, every website owner would be affected.
- When a business/individual becomes liable for something, a whole arm of the legal system comes into play in a lawsuit. There’s a swathe of liability case law, judgments, & State and Federal legislation.
- If a plaintiff can prove there’s been a liability violation, compensation can be due.
Section 230 changes would also impact brands and enterprises.
- Small platforms are at risk financially, especially those with less legal resources.
- Enterprising and resourceful startups put more energy into getting up and running. But, unfortunately, extralegal costs are punitive and time-consuming for new entrepreneurs.
- Changes could encourage the abuse of smaller companies or individuals. You might fear being sued or viewed as biased and be unable to take down spam or troll content.
- Losing the power to ‘freely moderate’ could damage your brand. Imagine a scenario where you couldn’t take down any reviews, no matter how inaccurate/malicious, without case-by-case investigations.
It’s not hard to see how the safest place to be online would be under the umbrella of big tech firms with the resources to run content moderation streams. And you’d have to stick by their choices.
You could experience cost increases and lose trade if you lose the ability to self-moderate.
Section 230 changes may affect individuals.
Imagine one of you against an army of moderators. Unless you can code a defense bot to address online comments that offend you personally, you might find you have to live with negative social media connected to your name.
There could be severe harm to your privacy. It’s not hard to dream up a scenario of a night out you want to forget ending up online, but you can’t get a take-down because the user who posted it can prove it’s true. And worse, if you have to apply for moderation, your private information could stay public for extended periods during investigations.
How should I view Section 230?
Here are some questions to consider when thinking about how you view upcoming laws which could restrict your Internet freedom.
- How much regulation should there be, if any?
- And then another question might be: Do I want government laws to censor my online speech?
- And how much of that power do I want to agree to hand over?
And for website content creators and small businesses:
- Will you need to hire moderators or a moderation service?
- And would you want to? Will you have to?
Why have we written about this?
Internet freedom is important to us as a company and brand, and vital for you as our customers. Each of you uses technology products that you moderate and have complete control over. We advocate for that right to continue to be in your hands. This is what Internet freedom is, and it’s core to our values.
Currently, we believe the Internet is more than just a regulated place full of shops and instead is our space. A wonderful world filled with diversity we can all explore. Our freedom isn’t censored or restricted or decided for us. In previous centuries, Mandela and Dickens warned us all to be wary of governments keen to moderate opinions — restricting free speech and expression hasn’t done us any favors in the past.
As citizens ourselves, we embrace the joy of hearing all voices. The power to regulate or restrict speech or expression concentrated in the hands of only a few big tech companies is not how we want those decisions made for us.
Gandhi reminds us: “Section 230 is a foundational law for free expression and human rights when it comes to digital speech. It makes it possible for websites and online forums to host the opinions, photos, videos, memes, and creativity of ordinary people, rather than just content that corporations back.”
What’s Namecheap doing?
We remove offensive, abusive, and spammy content from our platform. When required, we cooperate with law enforcement. Self-regulation at Namecheap is by no means a ‘moonshot’ — in 2020 alone, we received 1.27 million abuse reports, and we investigate all cases seriously.
- As an example of how seriously any large reputable platform takes moderating content, you can read more about how Namecheap works hard to combat online fraud.
Namecheap is concerned about your online privacy and the fight for your data, too.
- Read the latest on the fight for online privacy in Namecheap champions privacy standards.
- Our CEO, Rick Kirkendall writes about our legal advocacy efforts and work with None of Your Business, in his article; European Center for digital rights joins privacy fight.
What can you do?
Fight for the Future is significantly concerned that bad legislation targeting Section 230 could move fast once introduced.
Greer adds: “Most lawmakers looking to appear “tough on tech” are attacking Section 230 without meaningful consideration of how changing it could have unintended consequences, especially for marginalized communities and small businesses. We feel it would be better for Congress to address the harms of Big Tech by passing strong Federal data privacy laws, enforcing antitrust laws, and targeting harmful business practices using your data.”
It is vital for small businesses, the startup community, and regular Internet users to come together and educate themselves on the benefit and value of Section 230.
- You can read about human rights concerns with gutting 230 in Fight for the Future’s letter, signed by more than 70 human rights groups.
- Learn more about Fight for the Future.
Greer says, “If and when legislation starts to move, we’ll be sounding the alarm and organizing big online days of action, as we did for SOPA/PIPA and net neutrality, and we’ll need everyone to participate.
For now, it would be great if folks can take action to protect Internet freedom at SaveOnlineFreeSpeech.org.